The Christmas-themed ad proposed by the Catholic Archdiocese of Washington, D.C., to be placed on public buses and in bus-stop shelters in the Washington area was so simple, anodyne, and subtle, in both content and design, that you’d have to think twice before realizing that it conveyed a message, much less a religious message. The only hint: The posters, which the archdiocese hoped to mount during the Advent season, displayed a star and a group of robed shepherds and sheep as white silhouettes against a midnight-blue background. “Find the Perfect Gift,” the copy read, adding a web address (FindThePerfectGift.org) and a hashtag (#PerfectGift). Only if you navigated to the website itself would you read: “Jesus is the perfect gift.” There you would find some ways to prepare spiritually for the birthday of the Savior—such as prayers, reflections, and giving to the less fortunate. The website also provides information about Catholic Masses and confession times at Washington-area Catholic churches.

So it’s hard to believe this, but the Washington Metropolitan Transit Authority (WMATA) deemed this gentle and minimalist communiqué to be “issue-oriented advertising,” forbidden under a 2015 WMATA policy directive. So did U.S. District Court Judge Amy Berman Jackson, who on December 9 rejected the archdiocese’s claim that WMATA’s refusal to post the ad violated its First Amendment right of free speech. WMATA had defined “issue-oriented” to include ads that “promote or oppose religion.”

The agency had issued the blanket ban as a way to get around the First Amendment problems that would have arisen had it issued a specific ban against an ad that pro-Israel activist Pamela Geller wanted to post on buses and in subway stations in the spring of 2015: the prize-winning caricature of the prophet Muhammad in a “Draw Muhammad” contest that Geller’s American Freedom Defense Initiative had earlier sponsored in Dallas. The contest was itself a form of protest, against the three days of terror in Paris in January 2015 that followed the satirical magazine Charlie Hebdo’s publication of a caricature of Muhammad. The incidents included a massacre at the Charlie Hebdo offices, the murder of a policewoman, and an attack on a kosher supermarket. And Geller’s contest terminated abruptly on May 3, 2015, when two Muslim gunmen opened fire on the building in Dallas where it was being held (the men were shot and killed by a SWAT team). On the theory that Washington, D.C. buses could turn into terror targets if they bore Geller’s ad, WMATA decided to ban all advocacy ads, including, specifically, those related to religion. Jackson ruled that in rejecting the Catholic archdiocese’s “Perfect Gift” campaign, WMATA was fairly enforcing an across-the-board policy. She wrote: “Given [Washington Metropolitan Area Transit Authority’s] concerns about the risks posed by issue-oriented ads, including ads promoting or opposing religion, its decision was reasonable.”

But was it? WMATA has continued to accept purely commercial Christmas advertising: retail promotions, holiday light shows at malls and theme parks. It also continues to permit a Christian organization, the Salvation Army, to solicit seasonal giving to its signature “red kettles.” It seems odd that the Salvation Army, an offshoot of 19th-century Methodism whose core beliefs about the Trinity, Jesus’s divinity, and the Bible as the inspired word of God resemble those of evangelical Protestantism—and indeed those of the Catholic Church—has managed to get a pass from WMATA just because it has a more restrained iconographic style. Red kettles simply look less religious than the Star of Bethlehem. And so Judge Jackson wrote that the Army’s kettles, unlike the archdiocese’s shepherds, simply promoted a universal ideal of charitable giving. While charitable giving is a fundamental tenet of many faiths, “the [Salvation Army’s] advertisement does not advance or reject any religious imperative or spiritual inspiration for the activity it is seeking to encourage.”

The sad thing is that the Washington archdiocese had clearly tailored its minimalist “Find the Perfect Gift” ad to be as close as you could get visually to the Salvation Army’s red kettles without jettisoning Catholic iconography altogether. In the past—before 2015—Catholic ads on the Washington Metro system featured Renaissance-art Madonnas and included the addresses of Catholic churches where those interested might attend Christmas Masses. “Come home for Christmas” was a typical pre-2015 message. Not surprisingly—though too late for action before Christmas 2017—the archdiocese has appealed Jackson’s ruling to the D.C. Circuit Court of Appeals. It argues that Jackson was sanctioning “viewpoint discrimination” by government officials, a violation of the First Amendment. And it does seem anomalous that WMATA has permitted the promotion of Christian charity by one Christian group but not another, on the sole ground that the permitted group uses a more secular-looking religious symbol. With all due respect to the Salvation Army, whose works and commitment to Christ are admirable, WMATA’s position seems distinctly unfair.

But what is even sadder is that WMATA—like many another government agency—has allowed Islamic terrorism to define what is permissible in the public square by Christians and members of other religious groups whose longstanding charitable impulses involve quite the opposite of bombs and bullets. Open fire on a gathering whose nonviolent activities are fully protected by the First Amendment, and you can curtail the rights of others to express their views in public places.

Charlotte Allen is a writer living in Washington, D.C.

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